By Mateusz Perkowski | Aug. 8, 2025 | Capital Press
Read WaterWatch of Oregon’s corresponding press release on the Oregon Supreme Court decision.
An irrigation district must get another chance to persuade Oregon water regulators to approve a new Willamette Valley reservoir, according to a recent state Supreme Court ruling.
The East Valley Water District’s proposal for an irrigation reservoir near Silverton was improperly denied by the Oregon Water Resources Commission, according to the state’s highest court.
Under the recent ruling, the commission must weigh additional factors in reconsidering the irrigation district’s application to build a dam on Drift Creek to store about 12,000 acre feet of water.
However, the Oregon Supreme Court has rejected one of the East Valley Irrigation District’s key arguments regarding how new water rights are evaluated.
The irrigation district claimed the reservoir’s environmental impact on an instream water right in Drift Creek was irrelevant to the commission’s review, since the project wouldn’t affect the quantity of water protected under that instream water right.
Critics of the project, including environmental advocates and other farmers, argued the reservoir would defeat the purpose of the instream water right, since the creek would be flooded to the detriment of cutthroat trout.
The state’s highest court has now agreed with critics that water rights protect more than just the quantity of water used, but also the “right to use the water in a particular way” without new appropriations interfering with that purpose.
“To summarize, a water right confers not just the right to a quantity of water, but also the right to continue the specified beneficial use of that water,” the ruling said. “In other words, the nature or purpose of the use stated in a water right certificate is a distinct, integral aspect of a water right entitled to protection.”
This aspect of the ruling is significant, as both supporters and opponents of the proposed reservoir argued it would have broader implications for Oregon water law.
For example, the Oregon Association of Nurseries (OAN) urged the state’s highest court not to allow the purpose of an instream water right to affect the commission’s review of a new water rights application.
Reviewing water rights applications based on quantity provides “objectivity” that is “critical to the fair and transparent administration of this scarce resource,” according to OAN.
On the other hand, if regulators also consider whether the purpose of an instream water right is frustrated, that will insert “uncertainty and subjectivity” into the process, undermining the predictability of state water law, the organization said.
If the commission’s rationale for denying the reservoir application is upheld, it “threatens to end such new appropriations in any basin where an instream water right is present,” the OAN said.
Critics of the proposed reservoir countered that allowing regulators to disregard the purpose of an instream water right would effectively invalidate the environmental benefits they were meant to confer.
By allowing the new reservoir to “drown” the creek with additional water, cutthroat trout would be harmed and the instream water right would basically be destroyed, according to critics.
Critics of the project include the environmental nonprofit WaterWatch of Oregon, as well as a separate group of farmers who would lose nearly 400 acres of land that would be inundated by the reservoir.
Though the Oregon Supreme Court has decided the purpose as well as the quantity of water rights must be considered by regulators, its ruling has provided the East Valley Water District with another basis to argue in favor of the reservoir. Specifically, the state’s highest court has determined the reservoir was denied due to a single “public interest factor,” but the commission was required to consider all seven public interest factors laid out in state water law before reaching its ultimate decision.
“In its final order denying East Valley’s application, the commission expressly disavowed any need to consider the remaining factors,” which amounted to an “erroneous interpretation of the law” that must be reconsidered, the Oregon Supreme Court said.
Though the ruling will give the irrigation district another shot at convincing regulators to approve the reservoir, a dissenting opinion has raised the possibility that the reconsideration will essentially be “a meaningless gesture.”
In his dissent, Justice Stephen Bushong said the commission’s consideration of the other public interest factors was “implicit” in its denial and did not have to be expressly stated.
Bushong said he does “not see the point” of remanding the matter to the commission, which “need only state expressly what is implicit in its original order” to again reject the proposal.
Despite this caveat, the East Valley Water District is pleased with the Oregon Supreme Court’s ruling, expecting it will allow for a correct analysis of the proposal under the seven “public interest” factors required by state law.
“East Valley’s proposed use of water is clearly in the public interest based on a proper consideration and balancing of these factors,” said Dave Bielenberg, a farmer and the district’s board chair.
Bielenberg noted that the director of the Oregon Water Resources Department recommended the approval of the reservoir based on these seven factors.
“New water storage is an important tool to address water scarcity and promote the public interest,” he said. “We’re glad the Supreme Court required the commission to carefully consider the public interest beyond the narrow and truncated review reflected in the commission’s prior order.”
Meanwhile, an attorney for WaterWatch of Oregon said the Supreme Court’s ruling is “a big win for the public in protecting its waters against private use for private gain as the state gets hotter and drier.”
The ruling has confirmed that “instream rights are not created just to keep water in a stream for its own sake, but for the sake of fish, wildlife, or recreation,” said Thomas Christ, the nonprofit’s attorney.
The dissenting opinion is also correct that the commission already considered all the relevant public interest factors in denying the project application, he said.
The commission didn’t need to spell them out expressly, “no doubt because none of them mitigates the harm from the proposed dam to this particular instream right,” Christ said.
This article originally appeared in the Aug. 8, 2025, issue of Capital Press. Banner photo of Victor Point Rd. SE bridge over Drift Creek courtesy of Mateusz Perkowski.